Memo

TITLE OF BILL: An act to amend the penal law and the social services law, in relation to preventing financial exploitation of the elderly

PURPOSE: Establishes exploitation of the vulnerable elderly or incompetent or physically disabled as a form of larceny.

SUMMARY OF PROVISIONS: Section 1 amends section 260.31 of the penal law by changing the definition of "Caregiver".

Section 2 amends section 155.05 of the penal law by changing the definition of larceny to include financial exploitation of the vulnerable elderly or incompetent or physically disabled person.

Section 3 amends section 155.15 of the penal law by creating a defense for financial exploitation of the vulnerable elderly or incompetent or physically disabled.

Section 4 amends section 473 of the social services law to require local officials to report to the appropriate district attorney's office when there is reasonable belief that a crime is being perpetrated against a person for whom protective services are being provided.

Section 5 is the effective date.

JUSTIFICATION: Financial exploitation of the vulnerable elderly is a pervasive and often unseen form of abuse. According to former Maine Attorney General Steven Rowe, financial exploitation is a factor in 40% of all elder abuse cases. This is a trend that is only bound to increase, given that 70% of the nation's household net worth is owned by seniors, and our society is rapidly aging.

The National Center on Elder Abuse defines elder financial exploitation as "the illegal or improper use of an elder's funds, property or assets." Such instances of exploitation take form in the way of credit card fraud, real estate scams, identify theft and burglary. They are also notoriously difficult to combat. Even when reported to local authorities, antiquated criminal statutes make it difficult to prosecute these offenses.

Considering the widespread and shocking prevalence of financial exploitation against seniors, it remains a mystery why New York has no law to enable law enforcement to stop this abuse.

In passing this bill, New York would be joining at least 29 other states responding to the need for increased protection for elders against

financial abuse. This bill would give district attorneys and police the tools they need to prosecute instances of financial exploitation.

Among its other provisions, this bill also requires adult protective services officials to report all instances of suspected exploitation to their district attorney's office. Timely identification of exploitation and capable enforcement of the law will go far in preventing financial abuses against the vulnerable elderly. In addition, this proposal would transform convenience accounts into a viable financial planning tool for the vulnerable elderly. Currently, these accounts have no safeguards protecting them from unintended and unwarranted use by persons in a position of trust.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.

Text

STATE OF NEW YORK
________________________________________________________________________
6712
IN SENATE
March 12, 2012
___________

Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Social Services
AN ACT to amend the penal law and the social services law, in relation
to preventing financial exploitation of the elderly
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The opening paragraph and subdivision 1 of section 260.31
of the penal law, the opening paragraph as added by chapter 381 of the
laws of 1998, subdivision 1 as amended and such section as renumbered by
chapter 14 of the laws of 2010, are amended to read as follows:
For the purpose of sections 155.05, 260.32 and 260.34 of this article,
the following definitions shall apply:
1. "Caregiver" means a person who (i) assumes responsibility for the
care of a vulnerable elderly person, or an incompetent or physically
disabled person pursuant to a court order; or (ii) VOLUNTARILY ASSUMES
RESPONSIBILITY FOR THE CARE OF A VULNERABLE ELDERLY PERSON OR AN INCOM-
PETENT OR PHYSICALLY DISABLED PERSON; OR (III) receives monetary or
other valuable consideration for providing care for a vulnerable elderly
person, or an incompetent or physically disabled person.
S 2. Subdivision 2 of section 155.05 of the penal law is amended by
adding a new paragraph (f) to read as follows:
(F) BY FINANCIAL EXPLOITATION OF THE VULNERABLE ELDERLY OR INCOMPETENT
OR PHYSICALLY DISABLED PERSON.
(I) A PERSON OBTAINS PROPERTY BY FINANCIAL EXPLOITATION OF A VULNER-
ABLE ELDERLY, OR INCOMPETENT OR PHYSICALLY DISABLED PERSON WHEN, WHILE
IN A BUSINESS RELATIONSHIP OR CAREGIVER STATUS WITH A VULNERABLE ELDERLY
PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON, HE OR SHE KNOWINGLY
OBTAINS OR USES OR ATTEMPTS TO OBTAIN OR USE A VULNERABLE ELDERLY
PERSON'S OR INCOMPETENT OR PHYSICALLY DISABLED PERSON'S PROPERTY WITH
THE INTENT TO TEMPORARILY OR PERMANENTLY DEPRIVE THE VULNERABLE ELDERLY
PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON OF THE USE, BENEFIT
OR POSSESSION OF THE PROPERTY, OR TO BENEFIT HIMSELF OR HERSELF OR A
THIRD PERSON.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14971-01-2

S. 6712 2

(II) A PERSON OBTAINS PROPERTY BY FINANCIAL EXPLOITATION OF A VULNER-
ABLE ELDERLY, OR INCOMPETENT OR PHYSICALLY DISABLED PERSON WHEN, WHILE
IN A BUSINESS RELATIONSHIP OR CAREGIVER STATUS WITH A VULNERABLE ELDERLY
PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON, HE OR SHE KNOWINGLY
OBTAINS OR USES OR ATTEMPTS TO OBTAIN OR USE CASH, SECURITIES OR OTHER
PROPERTY FROM A DEPOSIT ACCOUNT AS DESCRIBED IN SECTION SIX HUNDRED
SEVENTY-EIGHT OF THE BANKING LAW FOR ANY OTHER PURPOSE BESIDES FOR THE
BENEFIT OF THE ORIGINAL DEPOSITOR WHERE THE VULNERABLE ELDERLY PERSON OR
INCOMPETENT OR PHYSICALLY DISABLED PERSON IS THE ORIGINAL DEPOSITOR OF
THE ACCOUNT. FOR PURPOSES OF THIS PART, ANY BANKING ORGANIZATION OR
FOREIGN BANKING CORPORATION OR AGENT OF THE ORGANIZATION OR FOREIGN
BANKING CORPORATION THAT RELEASES CASH, SECURITIES OR OTHER PROPERTY TO
AN ADDITIONAL ACCOUNT HOLDER SHALL NOT BE CULPABLE OF ANY OFFENSE BY THE
SOLE ACT OF RELEASING CASH, SECURITIES OR OTHER PROPERTY TO AN ADDI-
TIONAL ACCOUNT HOLDER.
S 3. Section 155.15 of the penal law is amended by adding a new subdi-
vision 3 to read as follows:
3. IN ANY PROSECUTION FOR LARCENY BY FINANCIAL EXPLOITATION OF A
VULNERABLE ELDERLY, OR INCOMPETENT OR PHYSICALLY DISABLED PERSON, IT IS
AN AFFIRMATIVE DEFENSE THAT THE DEFENDANT ACQUIRED EXPRESS CONSENT FROM
THE VULNERABLE OR INCOMPETENT OR PHYSICALLY DISABLED PERSON TO OBTAIN OR
USE THE VULNERABLE ELDERLY PERSON'S OR INCOMPETENT OR PHYSICALLY DISA-
BLED PERSON'S PROPERTY FOR HIS OR HER OWN BENEFIT OR THE BENEFIT OF A
THIRD PERSON. CONSENT MUST HAVE BEEN GIVEN BY THE VULNERABLE ELDERLY
PERSON OR INCOMPETENT OR PHYSICALLY DISABLED PERSON PRIOR TO LOSING THE
ABILITY TO ADEQUATELY CARE FOR HIM OR HERSELF OR BY A PERSON WHO HOLDS A
POWER OF ATTORNEY OR SIMILAR AUTHORITY OVER THE VULNERABLE ELDERLY OR
INCOMPETENT OR PHYSICALLY DISABLED PERSON AT ANY TIME PRIOR TO THE
DEFENDANT OBTAINING OR USING OR ATTEMPTING TO OBTAIN OR USE THE VULNER-
ABLE ELDERLY PERSON'S OR INCOMPETENT OR PHYSICALLY DISABLED PERSON'S
PROPERTY.
S 4. Subdivision 5 of section 473 of the social services law, as added
by chapter 395 of the laws of 1995, is amended to read as follows:
5. Whenever a social services official, or his or her designee author-
ized or required to determine the need for, or to provide or arrange for
the provision of protective services to adults in accordance with the
provisions of this title has a reason to believe that a criminal offense
has been committed, as defined in the penal law, against a person for
whom the need for such services is being determined or to whom such
services are being provided or arranged, the social services official or
his or her designee must report this information to the appropriate
police or sheriff's department and the district attorney's office [when
such office has requested such information be reported by a social
services official or his or her designee].
S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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